NAIMUDDIN, J.-This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan (1973) filed by Syed Arshad Hussain, one of the voters for the election of Members of the Sukkur Municipality, is directed against the holding of offices by respondent No. 6 as Mayor of the Municipal Corporation, Sukkur (hereinafter called the Corporation), respondent No. 7 as Deputy Mayor of the Corporation and respondents Nos. 8 to 39 as Members of the Corporation. The Government of Sind, the Provincial . Election Authority, Sind (hereinafter called the Authority). The- Deputy Commissioner, Sukkur and the two Additional District and Sessions Judges, Sukkur have been joined as respondents Nos. I to 6.
2. The facts giving rise to this petition so far relevant for consideration of the points raised by the learned counsel for the parties in their arguments are as follows;--
3. .In order to hold elections of members to various Councils in the Province of Sind under the Local Government Ordinance, 1979 (hereinafter called the Ordinance) the Authority, respondent No. 2 by Notification dated 30-8-1979, issued under section 36 of the Ordinance read with rule 10 of the Sind Local Council (Elections) Rules, 1979 (hereinafter called the Rules), `1'6blished for general information, final list of constituencies or electoral units, after the delimitation of the units for elections to the various Local Councils as defined in Schedule I of the Ordinance. The Constituencies included Constituency for Municipal Committee, Sukkur. The final list of the constituencies was, however, published in the Sind, Government Gazette (hereinafter called the Gazette), dated 22-12-1979.
4. The Authority by another notification dated 30-8-1979, in pursuanee of the provisions of rule 11 of the Rules appointed various persons mentioned therein as Returning Officers. So far as electoral unit of Taluka Sukkur including Municipality of Sukkur was concerned, Mr. Imdad Ali Memon, Senior Civil Judge and First Class Magis--trate, Sukkur, was appointed as such. This notification was issued under the signatures of the Chairman and other two members of the Authority, and published in the Gazette dated 3-9-1979.
5. Thereafter, nominations to various constituencies were invited by 8-9-1979 but the time was extended upto 15-9-1919. On completion of formalities, on 25-9-1979, elections were held to the various Councils including the Municipal Committee, Sukkur and the names of the successful candidates returning to the Local Councils for the District Sukkur were notified on 8-10-1979, and published in the Gazette dated 1-11-1979.
6. It appears that prior to elections Mr. Imdad Ali Memon who was appointed as Returning Officer was replaced by Mr. Kadir Bux Umrani, I1nd Additional District and Sessions Judge, Sukkar. However, the notifica--tion issued on 26-2-1980, notifying the appointment of Mr. Kadir Bux Umrani as Returning Officer was published in the Gazette dated 8-3-1980. This notification was issued under the signature of Mr. Justice (Retd.) Mushtaq Ali Kazi, Chairman, Provincial Election Authority. The above notification was followed by another Notification No. PEAS/516/80 dated 12-3-1980 (Exh. 3) issued in exercise of powers under rule 11 of the Rules, whereby the amendment in the names of the Returning Officers notified for Sukkur District by the Notification No. PEAS/453/80 dated 26-2-1980 was declared to have effect from the date of original Notification No. PEAS/Not/9/79 dated 30-8- 1979. This notification was also issued under the signature of Mr. Justice (Retd.) Mushtaq Ali Kazi; Chairman of the Authority.
7. After the election of members, respondents Nos. 5 and 6 were elected as Chairman and Vice- Chairman respectively of the Sukkur Municipality in accordance with the Sind Councils (Assumption of Office) Rules, 1979.
8. Thereafter, the Government by the notification dated 25-3-1980 pursuant to the provisions of section 9 of Ordinance read with sections 7 and 10 thereof after inviting objections and after the Municipal Committee, Sukkur had passed the resolution supporting the changes mentioned in the notification declared the Sukkur City and constituted a corporation for the city of Sukkar and directed that the existing Chairman and Vice-Chairman and Members of the Sukkur Municipal Committee shall respectively become the Mayor and the Deputy Mayor and the Members of the Sukkur Municipal Corporation constituted as aforesaid.
9. During the hearing of arguments respondents Nos. 1 and 2 filed two counter affidavits one of Saeedul Hassan, Secretary of respondent No. 2 controverting the various points raised in the petition and stating that since entire election programme had been condensed and the election was scheduled to be held on 25th September, 1979, publication of preliminary delimitation of Constituency was directed to be carried out by the Deputy Commissioners by displaying the List of Electoral Units for each Council i.e. District Councils and Union Councils in Rural areas and Town Committees, Municipal Committees and Corporations in Urban areas at conspicuous places at their own offices and offices of the Council concerned and at such other public places as they deemed fit and further stating that a final list of delimitation of Constituencies was published on 30th August, 1979, and was sent to the Government press the same day for publication in the Sind Government Gazette.
10. As regards the substitution of the names of the Returning Officers it is statue the list of the Returning Officers as originally published on 30-8-1979 was revised on 5-9-1979. In support of this statement reliance is placed on the second affidavit filed by Mr. Mustafa Akber, the then Member and Secretary of the Authority, besides a phetostat copy of a letter dated 30-8-1979, addressed to the Deputy Commissioner of all Districts, whereby they were informed that the Authority had approved the final list of delimitation of the electoral units of all the Districts of Sind on that date and were further informed that the Authority had forwarded one copy-for publication in the Extraordinary Gazette and a copy supplied to A. D. L-G. Of their District. They were requested to take immediate steps to display copies of the final Electoral List in their own offices and also in the offices of the Returning Officers and the Local Council concerned.
11. Mr. Mustafa Akber, with regard to, the substitution of the Returning Officers, in his affidavit, has stated that on 5-9-1979, a telegraphic message bearing No. 7223 was received by him from the Deputy Commissioner, Sukkur requesting for certain modification in the list of the Returning Officers already appointed for Sukkur District. Following the receipt of telegram he consulted the then Chairman of the Authority and obtained his concurrence for the substitution of the names of the Returning Officers and he conveyed the approval of the Authority to the Deputy Commissioner, Sukkur on or about 6-9-1979, for the substitution of the names of the Returning Officer when the Deputy Commissioner Sukkur contacted him on phone and he explained in the affidavit the reasons why the changes in the list of the Returning Officers of Sukkur District escaped publication and he gave therein the reasons. Alongwith the affidavit of Mr. Mustafa Akber (Exh. 3/1) a photostat copy of the letter in confirmation of the telegram is filed which reads as follows; "Subject:-( ) Appointment of Returning Officers/Assistant Returning officers( . ) Following Returning Officers Are Recommended For Sukkur District( . )
Name of the Returning OfcerArea (1)
(2) Mr. Kadir Bux Umrani, 2ndCity Sukkur Additional District and Sessions Judge, Sukkur.
(3)--------------------------------------------------------------------------------------- ---.
(4) Mr. Imdad Ali Memon, Senior Civil Judge/Taluka.Sukkur.
FCM, Sukkur.
(5)
(6) .:.
(7)
(8)
(9)
Kindly Issue Notification Accordingly(. )
List of Assistant Returning Officers Follows(. )
Approval May Kindly Be Accorded, A photostat copy of another letter dated 28.2-1980 from the Deputy Commissioner, Sukkur, addressed to the Secretary of the Authority (Exh. 3/1/B) is also annexed to the affidavit which reads as follows;-- "Subject : Appointment of Returning Officer.
Ref : This Office Letter No. Election Cell/1939 dated 21-2-1980.
This Office record shows that the proposal for appointment of Returning Officers/Assistant Returning Officers for this district was sent under this Office wireless message No, LCE/7196, dated 14-9-1979 followed by telegram under this Office No. IB(d)/7223 dated 5-9-1979 for approval and issue of such notification. It was intimated by the Secretary, PEA on phone that the proposal sent by this office should be considered as approved and that formal notification will be issued in due course of time.
Mr. Kadir Bux Umerani District and Sessions Judge, Sukkur was proposed as Returning Officer for'
City Sukkur and 'Mr. Imdad Ali Memon, Senior Civil Judge F. C. M. Sukkur was proposed as Returning Officer for "Sukkur Taluka". They have actually performed their duties as such and no addition or alteration was made in the above proposal which remained in tact till last moment."
12. Since the respondents Nos. 1 and 2 had not filed the counter---affdavit in time, for, according to rules they had to file the same 4 days prior to the date of hearing but they had fled the same during the course of arguments, the same was taken on record on the condition that if Mr. Abdul Hafeez Pirzada considered it necessary he would be allowed to cross examine the deponent.
Accordingly, Mr. Pirzada cross-examined the deponent. We propose to discuss his evidence while discussing the points raised by the learned counsel for the petitioner in support of the petition.
13. We have heard at length Mr. Abdul Hafeez Pirzada, Advocate for the petitioner, Mr. Hassan Akber, Assistant Advocate-General for respondents Nos. 1 and 2, Mr. Khalid M. Ishaque Advocate for respondents Nos. 6, 7, 10. 11, 15 to 18, 20, 22, 24, 26, 29, 30 to 34 and 36 to 38, and Mr. Maqbool Ahmed Khan, Advocate for respondents Nos. 8, 9, 13, 14, 20, 23, 27, 28 and 29.
14. Mr. Abdul Hafeez Pirzada, learned counsel for the petitioner raised before us the following two grounds in support of the petition;
(i) The elections of respondents 6 to 39 held on 25-9-1979 to the Municipal Committee of Sukkur were void for the reasons that--
(a) respondent No. 2 had failed to notify and publish in the official gazette the notification of the delimitation of constituencies before the elections were held as required by section 30 of the Ordinance and rule 10 of the Rules, and
(b) the elections to Sukkur Municipality were held not by the appointed Returning Officer, but by a usurper and stranger who usurped the functions of the Returning Officer,
(ii) respondents Nos. 6 and 7 were elected as Chairman and Vice-- Chairman of the Municipal Committee of Sukkur while respondents Nos. 8 to 39 as Members thereof and they could not occupy the public offices of Municipal Corporation, Sukkur and call themselves as Mayor, Deputy Mayor and Members of the Corporation respectively.
15. Before we consider these grounds it is necessary first to deal with the preliminary objection raised by Mr. Khalid M. Ishque as to the maintainability of the petition. He submitted that the petition is not maintainable because it suffers from laches, and the petitioner had alternate remedy.
16. So far as the question of laches is concerned it is necessary to give certain material dates. This petition was filed on 6-5-1980, the elections to the Sukkur Municipality were held on 25-9-1979 respondents Nos. 6 and 7 were elected as Chairman and Vice-Chairman on .14-11-1979, the change in the name of the Returning Officer was notified on 26-2-1980, and published in the Gazette dated 8-3-1980 and the notification giving the said notification retrospective effect was issued on 12-3- 1980. The Sukkur Municipality was upgraded and declared Sukkur City by the notification dated 25- 3-1980, published in the Gazette dated 17-4-1980, and by the same notification the Sukkur Municipality was constituted a corporation and the existing Chairman and Vice-Chairman and Members of the said Municipal Committee were respectively directed to become Mayor and Members of the Sukkur Municipal Corporation constituted as aforesaid.
17. The present petition is under Article 199 of the Constitution and contains a prayer in the nature of quo warranto. In proceedings in the nature of quo warranto delay by itself has never been considered sufficient for the A purpose of defeating a petition. (See Athar Rahman v. Muhammad Latif Talmiz etc. PLD 1981 Lah. 48If a person holds a public office without the authority of law that is a continuous wrong and such a wrong whenever in question has got to be set right. Even otherwise, the question of laches has to be considered on the facts and circumstances of each case. In some case a g delay of three months may be fatal and in another a delay of years may have to be condoned. On the facts of the present case and various material dates mentioned hereinabove, we do not find the petition suffering from any laches. The first part of the preliminary objection is therefore overruled.
18. As regards the question of alternate remedy it would suffice to say that the petitioner was only a voter and was not a candidate at the elections and therefore could not have challenged the elections under the Rules. Rules 65 of the Rules gives a right to a candidate only to file an election petition. No provision., of the Ordinance of the Rules have been brought to our notice nor have we came across any which give the petitioner a right to file an election petition. Even otherwise, the second ground urged by Mr. Pirzada could not have formed the basis for setting aside the elections and could not be urged in an election petition even by a candidate. Therefore, it cannot be said that the petitioner had any alternate remedy available to him. We therefore, overrule the preliminary objection and proceed to examine the grounds urged by Mr. Pirzada.
19. Now, taking up the first part of the first ground that respondent No. 2 failed to notify in the official Gazette the notification or delimitation before the elections were held as required by section 36 of the Ordinance and rule 10 of the Rules it is necessary first to refer to these provisions. Under section 36 of the Ordinance the Election Authority is required, in the prescribed manner, to delimit the local area into single or mufti-member electoral units or both. The provisions relating to delimitation of electoral units are contained in rules 8, 9, and 10 of the Rules. These Rules are as follows;- "8.-(1) For the purpose of elections, a local area shall be divided into electoral units keeping in view the number of seats on the council and the population of the local area.
(2) The electoral units within the area shall be delimited having regard to the territorial unity and as far as practicable, to distribution of population and public convenience.
(3) As many Delimitation Officers as deemed necessary shall be appointed to assist in the delimitation work.
9.-(1) The election Authority shall arrange to have a preliminary list of electoral units delimited under rule 8, published in such manner as it deems fit together with a notice inviting objection or suggestions within such time as may be specified by the Authority.
(2) Any person entitled to vote at an election may, within specified time make a representation in respect of the delimitation of the electoral units, to such officer or authority as the Election Authority may appoint in this behalf.
10. (1) The Election Authority or any member thereof if so empowered by the Authority may after considering the representation and hearing those who wish to be heard make such amendments, alterations or modifications In the preliminary list published under rule 9 as deems fit.
Provided that the Member dealing with any representation may, if he thinks it appropriate, refer it to the Election Authority for decision.
(2) After disposal of all representations made under sub-rule (1), the Election Authority shall arrange to have the final lists of electoral units published in the official Gazette or in case of urgency in such manner as it deem fit."
It will be seen from the provisions of sub-rule (2) of rule 10 that after disposal of all representations made under sub-rule (1) of rule 10 of the Rules, the Election Authority is required to arrange to have the final list of the electoral units published in the official Gazette and in case of urgency, in such manner as it deemed fit. It is the case of the respondents that the final list was published on 30-8- 1979, though, no doubt it was notified in the official Gazette dated 22-12-1979, and is spread over 439 pages thereof. In the counter-affidavit filed by Saeedul Hussain, Secretary of respondent No. 2 it is stated that since entire election programme bad been condensed and the election was scheduled to be held on 25th September, 1979 publication of preliminary list of delimitation of electoral units was directed to be carried out by the Deputy Commissioners by displaying the list of electoral units for each Council i.e. District Councils and Union Councils in Rural area and Town Committees, Municipal Committees, and Corporations in Urban area at conspicuous places at their own offices and offices of the Council concerned and at such other public places as they deemed fit. He has further stated that a final list of delimitation of Constituencies was published on 30th August, 1979 and was sent to the Government Press the same day for publication in the Sind Government Gazette. He has also stated that since notification sent to the Government Press for publication in the official Gazette by reason of its huge volume was bound to take time to appear in the Gazette and since the elections were being held under a condensed programme, publication of final list was also directed to be carried out in the manner as aforesaid that is, by displaying the same in the offices of Deputy Commissioners, Union Councils, Town Committees, Municipal Committees and Corporations. -According to him coverage by the press, over the radio and Television was also sought and was duly given inasmuch as the notification issued by respondent No. 2 was duly published in the press on 1-9-1979. He has also stated that final delimitation list was in actual effect, published on 30-8-1979 and displayed on various public places as stated above on the following day.
Islamuddin, respondent No. 6 has also filed an affidavit stating that in response to the invitation for filing objections; suggestions in respect of the delimitation of constituencies several persons filed objections and the same were decided by Mr. Munawar Ali Khan, Member, Provincial Election Authority, who was authorised in this behalf by the Provincial Election Authority Sind as per detail given in the letter of the Provincial Electron Authority, Sind dated 1-6-1980, addressed to the answering respondent. He has further stated that the Provincial Election Authority released the final list of electoral units for information. In support of his statement he has filed a photostat copy of page 8 of Daily Dawn dated 1-9-1979, in which there appears a news item under the Head "Delimitation List for Sind Local Councils released". Some of the relevant .Portions of this news item are produced hereinbelow :.
"The final delimitation lists of electoral units for elections to the Local Councils throughout Sind were released by the Provincial Election Authority here yesterday . . . . . .
The Provincial Election Authority has also refused the final delimitation list for Hyderabad and Sukkur Divisions . . . . . . .
The final delimitation list with names and designation of returning officers appointed for each unit shall be displayed at the District Headquarters in the office of the Deputy Commissioners"-[A. P. P.] We, therefore, find ample material on record to show that final list of delimitation of the electoral units was published on 30-8-1980 though not in the official Gazette. However, publication of the final list in the official Gazette was not the only mode prescribed for publication of the same. In case of urgency it could be published in such other manner as it was deemed fit. The only condition to be fulfilled for publishing the final list in such other manner as the authority deemed fit was urgency. Since the elections were scheduled to be held on Z5-9-1979, under condensed programme, as explained by the Secretary of respondent No. 2 and since the final list of delimitation of electoral units sent to the Government Press on 30-8-1980, for publication in the official Gazette, by reasons of its huge volume was bound to take time to appear therein, there was urgency. The publication of the final list, by displaying the same in the offices of the Deputy Commissioner, Union Council, Town Committee, Municipal Committee and Corporation etc., and by announcement to that effect over the radio and television and in newspapers, we are therefore satisfied that the requirement of sub-rule (2) of rule 10 of the Rules was full satisfied.
However, Mr. Pirzada argued that there is nothing on record to show that there was any urgency and the procedure adopted was followed after conscious application of mind regarding the same.
It is not necessary for us to deal with this argument for the ground taken in the petition is that the elections were held in violation of the mandatory provision of section 36 of the Ordinance and rule 10 of the Rules inasmuch as there was failure on the part of the respondents to notify and publish in the official Gazette the notification of delimitation before elections were held. The argument now advanced finds no basis in the grounds taken in the petition. Further, we are entitled to presume that the decision to publish the final delimitation list in the manner m which it was published, was duly taken, as provided under section 114 of the Evidence Act, and illustrated by illustration (e) thereunder. It is not specifically denied and in fact, in the face of the documentary evidence on record, it is not possible to deny that such list was published in other manner; otherwise it would not have been possible for the candidates to participate in the elections from various constituencies for want of know--ledge of the electoral units as finally formed and announced and there would have been no election at all.
In our view the publication of final delimitation list in the Gazette dated 22-12-1979, does not affect the validity of the elections held on 25-9-1979, for the publication of such list in the Gazette was not the only mode prescribed for publication of such list. We, therefore, find no force in the first part of the first ground.
20. Now, we would consider the second part of the first ground that the elections of the Sukkur Municipality were not held by the appointed Returning Officer but were conducted by the usurper and stranger. We have already mentioned that by' the Gazette Notification dated 30-8-1979 Mr. Imdad Ali Memon, Senior Civil Judge and First Class Magistrate, Sukkur was appointed as Returning Officer but the elections were conducted by Mr. Kadir Bukhsh Umrani, 11 Additional District Judge, Sukkur. The respondents have explained that initially Mr. Imdad Ali Memon, was appointed as Returning Officer but subsequently Mr. Kadir Bux was appointed in his place. We have already adverted to the contents of the. Affidavit, filed by Mr. Mustafa Akber, the then Member and Secretary of respondent No. 2, Mr. Pirzada had cross-examined him at length and from his cross-- examination it emerges that the number of telegraphic message given by him as 7223 was not in fact number of the telegram but was the despatch number of the copy of the telegram endorsed to the office in confirmation by post and the same did not contain any request for modification of the list of the Returning Officer. He, however, explained that he had discussed and finalised the list of the Returning Officer in Karachi at the relevant time and had simultaneously requested the Deputy Commissioner to send to the Election Authority telegraphically or by wireless specific proposal regarding the appointment of the Returning Officers and the Assistant Returning Officers.
He further stated in the cross-examination that when the telegram was received on 5-9-1979, he had again discussed the proposal with Mr. Justice (Retd.) Mushtaq Ali Kazi and since the proposal was not the same they again modified the proposal in accordance with the new-proposal received from the Deputy Commissioner in his telegram. He, however, admitted that in this telegram no reasons were mentioned for the changes, though he further explained that the reason known to him for the change of, the Returning Officer was that the proposal wade by the Deputy Commissioner was administratively convenient to him for the proper conduct of elections. He has also explained that in the initial stage the nomination of the Returning Officers was by publication of their names in the Gazette but subsequently due to rush of work in the office of Election Authority and also because the Government press became heavily busy with the printing work, the Authority including Mr. Justice (Retd.) Mushtaq Ali Kazi and he were giving permission on telephone not only for Sukkur but also for other Districts. He denied the suggestions that all appointments of Returning Officers were always made by publication of their names in the Gazette and added that initially it was so done but subsequently amendments in the names of the Returning Officers were not published simultaneously in the Gazette with their appointments. He, fir, admitted that the Election Authority did not dispense with publication of the names of the Returning Officers in the Gazette whenever there was any change but they were subsequently in due course notified except in the case of some lapses due to oversight or rush of work. He admitted that the appointment of the Returning Officers published in the Gazette was signed by all the three members of the Election Authority. He further stated that he had discussed the change in the name of the personnel of the Returning Officers with the Chairman of the Election Authority and not with the third member as Mr. Justice (Retd.) Mushtaq Ali Kazi only was then .Available. He also stated that Mr. Justice (Retd.)
Mushtaq Ali Kazi had consulted the District Judges concerned as well as the Registrar of the High Court of Sind, Karachi regarding appointment of the Additional District Judges and other Judges as the Returning Officers. He, however, did not remember whether the individual members of the Election Authority were duly empowered under rule 11 of the Sind Local Council Elections Rules.
On consideration of the affidavit of Mr. Mustafa Akber the then Member and Secretary of the Election Authority and his cross-examination, and the affidavit of Saeedul Hassan, Secretary of respondent No. 1, we have no doubt that Mr. Kadir Bux Umrani and Mr. Ghulam Hussain Memon, Additional District Judges Sukkur who had conducted the election as Returning Officers were appointed as such. It is not in dispute that they were not qualified to be appointed as such. It was however, argued by Mr. Pirzada that if they were appointed by the Election Authority, their names would have been notified in the official Gazette. But it is not the requirement of law that their appointments should have been notified in the Official Gazette for rule 11 of the Rules, nowhere lays down such a requirement. Further, Mr. Mustafa Akbar has explained the reason as to why their names were not immediately notified m official Gazette. We have also not been able to find any breach of any rule nor was any referred to us in the appointment of Mr. Umrani or Mr. Ghulam Hussain Memon. Even, if we presume that there was any defect in their appointments, in our opinion that will affect the election unless it was shown that the irregularity was such that it had materially affected the result of the election, which is not the case here.
We find support from the dictum of the Supreme Court in Dr. Kamal Hussain and 7 others v.
Muhammad Sirajul Islam and others PLD 1969 S G 42In that case facts were that the Advocate- General of East Pakistan who was under section 6 of the Legal Practitioners and Bar Councils Act, 1965 the Chairman Ex Officio of Bar Council of that Province had been out of Pakistan for participation in a conference abroad. During his absence from the country the Provincial Government. Directed Mr. Jan-e-Alam who was the Senior Government Pleader "to remain incharge of the office of the Advocate. General", Mr. Jan-e-Alam whilst he was incharge of that office, figured. And was described as Advocate-General and Ex Officio Chairman of the Provincial Bar Council in the proceedings held for the purpose of holding election of the Provincial Bar Council under Chapter II of the Legal Practitioners Bar Councils Rules, 1966. Throughout the proceedings no objection was taken at any stage by any person as to the validity of the assignment of Mr. 1an-e-- Alam as the Advocate-General or the performance by him of the function as the Ex Officio Chairman of the Council. However, after the declaration of the result, the election was challenged as being void on the ground; "That the entire election was void as it was convened and conducted by Mr. Jan-e-Alam, Senior Government Pleader, Dacca, who had illegally assumed jurisdiction as Ex Officio Chairman of the Council, which office he neither held nor was qualified to hold."
On these facts it was observed as follows; "It may be stated here that no objection was taken by any one at any stage during the election to the validity of the assignment of Mr. Jan-e---Alam as the Advocate-General or to the performance by him of the functions as the Ex Officio Chairman of the Council. Nor is it shown that the election was in any manner prejudiced because Mr. Jan-e---Alam had acted as the Ex Officio Chairman of the Council in the conduct of the election." .
We would now, take up the second ground that respondents Nos. 6 and 7 were elected as the Chairman and Vice-Chairman of the Municipal Com--mittee of Sukkur while respondents Nos. 8 to 23 were' elected as members thereof and they could not occupy the public offices of Municipal Corporation, Sukkur and call themselves the Mayor, the Deputy Mayor and members respectively, of the Corporation.
In order to appreciate the arguments of the learned counsel for the parties it appears to be necessary, first to refer to the relevant provisions of the Ordinance.
According to the provisions of section 3, subsection (15) of the Ordinance, "Council" means a corporation, municipal committee, town committee, district council, Taluka council or Union Council, as the case may be. In accordance with the provisions of sections 6 and 7 of the Ordinance the local areas for the purposes of the Ordinance are delimited in various territorial units and those in the case of Urban,, Areas, are known as a town, municipality or city, and, in the case of rural areas, as Union, Taluka and District. Any area declared as Union, town, municipality or city has, as far as possible, to be compact and contiguous with territorial unity. Under subsection (2) of section 7 of the Ordinance, the population of a local area has to be in case of (a) a,-Union, such as may be specified by Government, (b) a town, between five thousand to twenty-five thousands, .(c). a municipality between twenty-five thousand to five lacs, (d) a city about five lacs. The Government under subsection (3) of section 7 of the Ordinance is empowered for the reasons to be recorded to waive any of the aforesaid characteristics while delimiting the local area.
Under section 9(1) of the Ordinance the Government is empowered, .By notification, to declare any urban area other than the area of a cantonment board as (a) a town, (b) a municipality, and'('c) a city. Under subsection (2) (ibid) the Government is authorised after inviting objections from the residents of any town, municipality or city and hearing those from amongst them who wish to be- beard in person, to declare by notification, such . Town as municipality and such municipality as city, or vice versa. . Under section 10 of the Ordinance the Government inter alia is authorised to constitute, in urban area;; (i), a town committee for each town, (ii) a municipal committee for each municipality, (iii) a corporation for each city.
Pursuant to the above-mentioned provisions, the Government undis--putedly invited objections, from the residents of the Municipal Committee Sukkur to the proposed declaration of Sukkur Municipality as Sukkur City but none was received. The Government, therefore, by notification No. S. 0.11-2(1)/80, published in the Gazette dated April 17, 1980, after the Municipal Committee, Sukkur had by resolution supported the proposed change declared Sukkur Municipality, as Sukkur City ; constituted Municipal Corporation for the said city to be known as Sukkur Municipal Corporation, directed that the existing Chairman and Vice-Chairman and Members of the Sukkur Municipality would respectively become the Mayor, the Deputy Mayor and the members of the Sukkur Municipal Corporation constituted as aforesaid.
It was contended by Mr. Abdul Hafeez Pirzada, learned counsel , for the petitioner that under section 9 of the Ordinance the Government could by notification declare the Sukkur Municipality as Sukkur City but it could not constitute a corporation for the Sukkur City by converting the existing Sukkur Municipal Committee into Sukkur Municipal Corporation. To constitute such corporation, it was further contended, the Government should have held fresh elections. It was also contended by Mr. Pirzada that the Government had also no power to direct the existing Chairman, Vice-- Chairman, and. Members of the Sukkur Municipal Committee to respectively become the Mayor, the Deputy Mayor and the Members of the Sukkur Municipal Corporation constituted as aforesaid.
In our opinion all the aforesaid contentions of the learned counsel have no force for as soon as a municipality is converted into a city in accordance with the provisions of section 9, subsection (2) of the Ordinance, the natural consequences would be that such Council would come, to be known as corporation according to the provisions and scheme of the Ordinance and its office bearers should therefore be known by the new designations given to the offices of such Corporation. The Ordinance provides no other con--sequences. Therefore, on conversion of the Municipality its Chairman, Vice-Chairman, and Members as consequence thereof have to be known as Mayor and Deputy Mayor and Members of the Corporation. The Notifica--tion of April 17, 1980 did no more - thatrecognise this natural consequence. Then, if the intention of the Legislature, on such a change, were that the Council should cease to exist and fresh elections should be held, it would have specifically so provided. In this regard it was argued by Mr. Pirzada that where the Legislature wanted to save the consequences, as in case of amalgamation or division, it has so provided and if on conversion of a municipality into a, corporation or vice versa it was intended to save such converted Council, the Legislature would have also specifically provided for it. In support of the argument, the learned counsel referred to the provisions of section 12 of the Ordinance which reads as follows :- "12.-(1) Government may, after inviting objections from the residents of a council or, as the case may be, councils-and hearing those from amongst them who wish to be heard, by notification, divide the council into two or more councils or amalgamate two or more councils and may specify in the notification the consequences which may ensue upon such division or amalgamation.
(2) When as a result of such division or amalgamation, any Council, is constituted in accordance with the provisions of this Ordinance, the existing members of the council so .Divided or amalgamated shall become the members of such council or councils as Government may, by notification specify as if such members had been elected to that council."
But since the division of a Council into two or more councils or amalgamation of two or more councils into one could certainly have upon such division or amalgamation certain consequences, particularly for the members of the existing Council or Councils the Legislature took due care thereof by providing that the existing members of the Council or Councils so divided or amalga-- mated shall become the members of such council or councils as the Government by notification may specify. But where no consequence could possibly ensue so far as the members of the Council are concerned, as in case of conversion of a municipality into a city or corporation or vice versa, the Legislature did not consider it necessary to make any provision for the same. We do not find anything in the Ordinance nor was any provision brought to our notice requiring of holding fresh election on such conversion. In our view the omission to so provide could be attributed to none but to good quality of draftsmanship for a good draftsman always avoids surplusages.
Further, if we accept the contention that on conversion of a municipality into city fresh elections should be held that would have serious consequences for under section 16 of the Ordinance the term of office of a Council is 4 years commencing from the date on which it holds its first meeting and the same will stand curtailed. Similarly, under the provisions of section 25 of the Ordinance subject however, to the provisions of section 20 which provide for resignation etc., the duration of the offices of Mayor, Deputy Mayor, Chairman and Vice-Chairman is same as that of the council i.e. four years unless any of them was first elected as a member subsequently in which case he would hold such office for the residue of the term of the council and the same would also end prematurely. We do not think that the Legislature intended any such consequences.
We, however, pointedly asked Mr. Pirzada to show us how by conversion, according to the provisions of the Ordinance, of a Municipality into a city, or in other words, upgrading a council or vice versa would affect the working of the council or would have any other effect. In reply Mr. Pirzada referred to the Rules called The Sind Council (Delegation of Financial and Administrative)
Powers Rules, 1980 and pointed out that under rule 3 Clause (a) sub-clause (ii) cited, the Mayor of Sukkur could spend upto Rs. 25,000 subject to the provisions in the budget and any directions of the Council, while in the ease of a Municipal Committee at the Headquarter of a District the Chairman of such District could spend, subject to the same conditions, a sum not exceeding Rs.
10,000. But the rules relied upon do not affect the constitution of the Municipal Committee or corporation as such nor to they affect the rights of its member, only on upgrading, of the Municipal Committee, the powers of the Chairman to incur expenditure are enhanced from Rs. 10,000 to Rs.
25,000. Moreover, these Rules came into force on 17-6-1980 much after upgrading of the Municipal Committee of Sukkur. Further, a part of the controversy has been set at rest by amendment of section 9 of the Ordinance by section 2 of the Sind Local Government (Amendment) Ordinance, 1981, which was promulgated on, 4-1-1981, with retrospective effect, whereby subsection (3) was added after subsection (2) in section 9 of the Ordinance, which reads as follows;-- "(3) When the declaration has been made under subsection (2), the members and Chairman and Vice-Chairman or, Mayor and Deputy Mayor, as the case may be, of the Council existing immediately before the declaration, shall be deemed to be the members. Chairman and Vice- Chairman or Mayor and Deputy Mayor, as the case may be, of the Council to be .Constituted for the local areas after the declaration, until elections are held to such Council."
This ground also, therefore, fails.
Accordingly, we dismiss this petition but leave the parties to bear their own costs.